1. <start>

2. Free/ Open Content licensing: an IPR management perspective
past + present + future
Free/ Open Content licensing: an IPR management perspective
Prodromos Tsiavos
Universitetet i Oslo
Date:
INF 5750

3. [seven points of interest]
[one] Copyright Basics
[two] Follow the flow of rights
[three] techno-legal regimes and IPR management
[four] anatomy of a licence (GPL)
[seven points of interest]
[five] flow of rights in GPL
[six] the CC project
[seven] two CC case studies

4. Copyright basics
[one]

5. “Open-source software runs counter to the mission of WIPO, which is to promote intellectual property rights”
“To hold a meeting which has as its purpose to disclaim or waive such rights seems to us to be contrary to the goals of WIPO”
Lois Boland, Director of International Relations for the U.S. Patent and Trademark Office, 2003

6. Is FLOSS really contrary to Copyright Law?
How does Copyright law operate in relation to software?

7. Copyright and Software
it is not a “natural” way to “protect” software
there has been an extensive debate in the 1980s and early 1990s about whether it is the most appropriate way to support production and innovation of software

8. What is Copyright?
duration
idea/expression
originality
one of the Intellectual property rights (IPR)
a limited property right granted by the state under certain conditions
a bundle of rights
an expression of a social agreement on the way in which intellectual production of a certain kind may be fostered
the outcome of specific historical circumstances

9. Economic Assumptions
Commercial value is the result of direct exchange between the rights holder and the user
The creator requires incentives in order to innovate
Such assumptions:
are expressed in the Copyright Act
are exercised in licensing agreements that set the specific conditions of creative production and distribution

10. changed Economic Assumptions Legal reform
New ways of exercising existing proprietary rights
Free/ Open Source Licensing
What if the cost of creative contribution is so low that the problem is not to provide incentives but rather to reduce frictions?
The Commons Based Peer Production Model
A different set of issues:
Reduce legal and technological friction
Introduce decentralized production modes
Coordinate with the lowest possible transaction costs

11. Each Creation may comprise of several “copyrighted works”
Statutory Creature
Copyright
A bundle of rights
Each Creation may comprise of several “copyrighted works”
A special Property Right

12. Great cost to produce the work
(a) Why Copyright
Great cost to produce the work
Differentiation between the work and its material carrier
Low cost to reproduce material carrier
I may enjoy the work without prohibiting others from doing the same
A “public good” or “non-rivalry good”
A legal system that prohibits reproduction of work/ material carrier with no permission
Need to provide incentives to people to create works
Technologies that prohibits reproduction of work/ material carrier with no permission

13. (b) Balancing interests
Allow other creators to have access to material for new works
Need to protect the work but
Allow uses that are beneficial for society
Recognize the author irrespective of the owner
People create in order to become not only rich but famous as well
UK: publishers
Historical Origins
The Continent: the authors

14. (c) A special property right
Life of the author + 70 years
Limited Duration
(but tends to be perpetuated)
There is always need to return something to the public domain for subsequent creations
Idea/ expression dichotomy
Originality
They are perpetual
Moral Rights
They always stay with the author

15. (d) One creation several works
Source Code
Documentation
Design Documents
Manuals/ FAQs
Graphic User Interface
Support Tools
Pluggins/ Skins

16. (d) One creation several works
Screenplay
Music Score
Performances
Video Recording
Sound Recording
Broadcast
2004 Eclectic Method
Graphics (artistic work)

17. 1890 Adolphe-Léon Willette Welcome Images CC-EW 2.0 BY_NC
(e) One work several rights
To reproduce
To make available to the pubic
To impose technical measures of protection
To make derivative works
To broadcast
To prohibit others from distorting the work
1890 Adolphe-Léon Willette
Welcome Images CC-EW 2.0 BY_NC
To be identified as an author

18. (f) Sources
Law: Copyright, Designs and Patents Act 1988 (with subsequent regulations)
Case Law
Readings:
Sterling (2003)
Coppinger, Skones James (2004)
Bentley (2004)
Reed and Angel (2003)
Benkler (2002)

19. Following the flow of rights
[two]

20. Aggregation of Contributions
Schema of a typical Copyright Transactional Cycle
Aggregation of Contributions
Packaging
Re-Packaging
Clearing of rights
Distribution
Aggregation of Rights
Consumption
Reuse

21. Aggregation of Contributions
An Example of Flow of Rights
Aggregation of Contributions
Packaging
Re-Packaging
Clearing of rights
Distribution
Aggregation of Rights
Reuse
Consumption

22. Aggregation of Contributions
An Example of Flow of Commercial Value (e.g. Money)
Aggregation of Contributions
Packaging
Re-Packaging
Clearing of rights
Distribution
Aggregation of Rights
Reuse
Consumption

23. Licence Wholesale markets
The distantiation phenomenon
The “Work” becomes independent” from its material manifestations: one work many manifestations (fixations)
The rights on the work get disassociated with its material manifestations
If the work may be put in a digital form the transaction costs significantly drop (goods markets)
If the rights may be put in a digital form the transaction costs significantly drop (licence/ rights markets)
Licence Retail markets
Third Way Licensing
Licence Wholesale markets

24. Techno-legal regimes and IPR management
[three]

25. Law referring to the author as an individual
Because of the costs of production publishing and dissemination
There is aggregation of rights and content by intermediaries
Traditional Model of IPR management
A wide range of uses either outside the scope of copyright law
(e.g. reading a book) or within Fair Use exceptions

26. Government produced material
Everyone becomes a “publisher” or creator on a digital network
Educational Institutions
Torrents and other P2P
Blogs
Wikis
Rating Sites

27. “Piracy is Theft” campaign by IFPI and MPAA
Awareness of Intellectual Property Rights by the Individual
IPR support programmes by the European Commission: IPR helpdesk
Education and legal aid projects by National Governments: e.g. Creative London, Arts Council Open Business project
Communities of Practice: Free Culture, Co-ops, Artists collectives, SMEs gorups

28. Lack of clarity of rights and exceptions
Myriad of Licences
Lack of clarity of rights and exceptions
The Rise of licensing societies
Increasing litigation risk
The distantiation phenomenon

29. Cultivate your own ecology of regulation
Collaboration/ coordination tools beyond software development
Need for new types of services
Easy IPR Management services
Collective Management
vs. Flexibility
search/ classification services
Not everyone is a Lawyer
Techno-legal components
User friendly contracts

30. Reference Farm
Lessig, L. (1998). "The New Chicago School." Journal of Legal Studies 27(June):
On the Four modalities of regulation
On the use of copymarks
Jon Bing (2004): Copymarks: A suggestion for simple management
for copyrighted material International Review of Law, Computers
& Technology; Routledge, part of the Taylor & Francis Group
(18:3) November pp
On current licensing issues
On Creative Commons
Peter Schønning (2000): Copyright Licensing on the Internet; ALAI 2000, Stockholm June (PDF)
Prodromos Tsiavos(2007): Cultivating Creative Commons: From Creative Regulation to the Regulatory Commons

31. Anatomy of a licence (GPL)
[four]

32. The General Public Licence
© Nicolas P. Rougier (2007)

33. The GPL case Time: 1984 Place: MIT Context: Printing out material
Human Actors: Richard Stallman (software developer), Eben Moglen (Lawyer)
Source of problem: disparity between working practices/ social ethos and Copyright Law
Solution: the General Public Licence (Free/ Open Source Software)
Source: Stallman, R. M. (2002). Why Software Should Not Have Owners. Free Software, Free Society: Selected Essays of Richard M. Stallman. J. Gay, GNU Press: 224.

34. A four modalities of regulation approach
Social norms incompatible with the law
Software tools to support practices (From Mailing Lists, Bulletin Board Systems and floppy disks to Concurrent Version Systems and Sourceforge
Non-direct exchange based
Contracts following practice
A techno-legal phenomenon

36. Basic Licence Features I
Licence: permission to do things otherwise you could not
A “one-to-many” structure
The licensor retains the copyright
Choose from the bundle of rights which to give out and which to retain

37. [three expressions] [1] Human-Readable: Commons Deed [2]
Lawyer-Readable: Legal Code
[3]
Machine-Readable: Meta Data
Logo + Link

41. Basic licensing features II
Use the software
What you (the licensee) may do:
Distribute the Software
Modify the source code
Distribute modifications

42. Basic licensing features III
Block access to the source code
What you (the licensee) may not do:
Use a patent to close access to the source code
Sublicense

43. Basic licensing features IV
Keep all copyright notices
What you (the licensee) must do:
Make the source code available
Further distribute any copy or modified copy under the same licence

44. Basic licensing features V GPL v.3.0
Avoid Tivoization
GPL v.3.0 additional features
Neutralize laws prohibiting free software
Block discriminatory patent deals

45. GPL v.3.0 [neutralization]
If someone uses GPL v.3.0 to write code that implements DRM, then such code is not deemed as “an effective protection measure”
As a result, if you “break” that code, the DRM-related clauses are not activated

46. GPL v.3.0 [anti-tivoization]
requiring the distributor of a device using GPLed software to provide you with whatever information or data necessary to install modified software on the device.
distributors are still allowed to use cryptographic keys and are required to disclose one only for the purpose of modifying the GPLed code

47. GPL v.3.0 [anti-patent]
requiring the distributor of a GPLed software to provide the licensee with all patent licences necessary to exercise the rights GPL has granted to them

48. GPL v.3.0 [Licence compatibility]
opening up compatibility with licences containing only minor restrictions
clarifying compatibility with other licences

49. GPL v.3.0 [source code (sc) provisions]
keep intact existing provisions requiring dissemination of source code
provide instructions rather than the sc itself
special provisions for BitTorrent users (obligations applicable only for the initiator of the torrent)
combination with GPL-incompatible libraries possible

50. GPL v.3.0 [terminology and compliance]
use of the term “convey” instead of “distribute” in order to avoid terminology issues with non-US –like legal systems
compliance using the CC-compliance labs
if violation occurs, rights may be restored once the violation stops; alternative procedure in case the rights-holder contacts you directly

51. Flow of rights in a GPL scenario
[five]

52. Three flows to be noticed
Digital Copies
Rights
Services

53. An open source/ content copy/ distribution scenario
Ola (original Creator/ Licensor)
GPL
software
pRo (first User/ licensee)
software
GPL
Knut (first User/ licensee)

54. An open source/ content modification scenario
Ola (original Creator/ Licensor1)
Software 1
GPL (soft1)
GPL (soft1)
pRo (first User/ licensee1- Licensor2)
Modified software
GPL (soft2)
Knut (second User/ licensee2)

55. Value? Added Value Ola (original Creator/ Licensor1) GPL (soft1)
Software 1
GPL (soft1)
pRo (first User/ licensee1 – Licensor2)
Modified software
GPL (soft2)
Knut (second User/ licensee1)

56. A diagrammatic presentation of the licensing relationships in a 3 person GPL scenario
A: licensor of original work
B,C: licensees regarding original work
C (L1/L2), A (L2/L3): licensees for the Derivative works (different licences)
W: Work
DW1, DW2, DW3: Derivative Works
L1, L2, L3: Different GPL licences A W L3
DW3 L2 L1 L1
DW1 B C L2
In each GPL transaction the creator of a work or the contributor becomes a licensor and the recipient of the work a licensee. The licensee becomes a licensor with respect to any subsequent contribution. The subsequent derivative works are thus constantly re-licensed in what we may describe as a licensing mash.

57. A diagrammatic presentation of a GPL based derivative work development
The constantly expanding derivative work
DW4
W: the original work
DW1, DW2, DW3, DW4: derivative works based on the original work and each other
DW1 W1
DW2
DW3

58. The Creative Commons project
[six]

59. [chronicle] Founded 2001 1st Project: December 2002
Initiation: Berkman/ Harvard
Stanford Law School
[chronicle]
By:
James Boyle
Michael Caroll
Lawrence Lessig
Hal Abelson
Eric Saltzman
Eric Eldred

60. [objective] 2estabilsh middle ground copyright extremism between
copyfight anarchy

61. What is Creative Commons?
A non-profit charity
Creative Commons Corp.
Established in late 2001
First Project: licences (late 2002)
US Based

62. The CC Organizational Web
Project: international variations of the original licences
The CC Organizational Web
Creative Commons
International
Project: storing/ mixing of audio content
CC Mixter
Creative Commons
Science Commons
Project: application of CC philosophy on science; three pillars: licensing, publishing,data
iCommons
ccLearn
Organization: establishing an umbrella of commons
Project: use of CC licences to enrich common teaching resources

63. Licence Species
Six Basic licences based on the combination of three licence elements
Creative Commons Licences
CC Sampling Licence
Public Domain Dedication
Founders’ Copyright
Developing Nations Licence
Music Sharing

64. [hybrid] The General Public Licence [Free/Open Source Software]:
ShareAlike
Derivative
Other
Remix
[hybrid]
Shareware
No Commercial Use

65. [three expressions] [1] Human-Readable: Commons Deed [2]
Lawyer-Readable: Legal Code
[three expressions]
[3]
Machine-Readable: Meta Data
Logo + Link

66. schematic

67. logos
Attribution
No Commercial Use
No Derivative Works
Share Alike

68. Source: Esther Hoorn (2005) Repositories, Copyright and Creative Commons for Scholarly Communication,

69. Creative Common licensing operation
[seven]

70. Understanding the operation of the licences
Basic Template
Dual Structure
Variable Licence Elements
The licensor retains her copyright and autonomy
Licence principles:
The licensee is the recipient of a number of freedoms the licensor chooses to award

71. The operation of the basic template I (freedoms)
To reproduce the work
Basic Freedoms
To include the work in a collective work
To distribute copies
To modify the work to so that the rights may be exercised in all media formats/ platforms
Display publicly, perform publicly, to perform publicly by means of digital audio transmission

72. The operation of the basic template II (licensor’s autonomy)
The Licensor may license the work under different terms and conditions
The operation of the basic template II (licensor’s autonomy)
Licensor reserves all rights not explicitly granted
The licensor retains autonomy/ control
No sublicensing is allowed
The licensee is obliged to carry all notices regarding the copyright of the licensor
The licensee cannot impose any additional legal restriction or obstruct the dissemination of the work (e.g. using Digital Rights Management)
The licensee is obliged to attribute the original author

73. A diagrammatic presentation of the operation of the licence’s basic template
A: licensor
B, C, D, E: licensees
W: Work
L: A CC licence A W L L L B C W W L
The CC licence is always awarded directly from the Licensor to the recipient of the work. NOT through any of the licensees that merely operate as carriers of the work D E W

74. Share Alike The ShareAlike element It refers to the derivative works
When the licensor creates a derivative work, she has to further license it under the same terms and conditions as the work it was based upon
Particularly relevant when multiple authors create a work in a virtual environment (e.g. wikis, sampling sites)

75. A diagrammatic presentation of the operation of the Share Alike element
A: licensor for original work
B, C, D, E: licensees for original work
C, D: licensees for the Derivative work
W: Work
DW: Derivative Work
L1, L2: CC_SA licences A W L1 L1 DW L1 B C L2 DW
The creator of the derivative work (DW) becomes a licensor with respect to the DW and the same licensing structure as the one described in the basic template applies. The original work is always licensed with the DW and still links with the original author. D L2

76. Two CC Case studies
[seven]

77. Tate d_cultuRe : d0wnloAd_saMple+cuT-uP: cultuRe
wide and shallow DW: Sampling sites.
Tate d_cultuRe : d0wnloAd_saMple+cuT-uP: cultuRe
ccMixter

78. [technology interaction]

80. Case study abstraction
Multiple creators contribute distinct works in a common repository
The works are used to produce derivative works that are also contributed to the repository
There are few cycles of derivative works (average: up to three cycles) [shallow]
The same work is being used by many authors to produce multiple different derivative works [wide]

81. A diagrammatic presentation of the Wide and Shallow DW model (creator focused)B C L2 DW L2 DW F E L1 L1

82. A diagrammatic presentation of the Wide and Narrow DW model (work focused)
W1, W2, W3: works included in the sampling site.
DW1, DW2, DW3: derivative works
AW: Alien Work, i.e. not included in the sampling site but used together with one of the works included in the site to produce a DW that will be included in the site W1 W2 W3
DW1
DW2
DW3 AW

83. (b) Narrow and deep DW: Wiki sites.
WikiTravel

85. Case study abstraction
Multiple creators offer multiple contribution that often cannot be identified as a distinct works towards the completion of a single work The works are used to produce derivative works that are also contributed to the repository
There are many cycles of change that lead to a single work; the work is produced through multiple successive contributions to a single item [deep]
Variations (derivative works) of the single initial work are constantly updated to produce the end result [narrow]

86. A diagrammatic presentation of the Deep and Narrow DW model (creator focused)
A: licensor for original work
B,C: licensees for original work
C (L1/L2), D (L2/L3), E (L3/L4): licensees for the Derivative works (different licences)
W: Work
DW1, DW2, DW3: Derivative Works
L1, L2, L3, L4: CC_SA licences with the same licence elements A W L1 L1 L3
DW1 B C L2
The creator of the derivative work (DW) becomes a licensor with respect to the DW and the same licensing structure as the one described in the basic template applies. The original work is always licensed with the DW and still links with the original author. As we move down the chain of derivative works the mechanism is replicated. L3
DW2 L4 D E L2
DW3

87. A diagrammatic presentation of the Deep and Narrow DW model (work focused)
The constantly expanding derivative work
DW4
W: the original work
DW1, DW2, DW3, DW4: derivative works based on the original work and each other
AW: Alien work, outside the boundaries of the wiki
ADW: Alien Derivative work deriving from the DW of the wiki and the AW taken outside the boundaries of the wiki
DW1 W1
DW2
DW3
ADW AW

88. [closing remarks]

89. The Open Knowledge definition I (definition)
The term knowledge is taken to include:
Content such as music, films, books
Data be it scientific, historical, geographic or otherwise
Government and other administrative information

90. The Open Knowledge definition II (conditions)
Access
Redistribution
Reuse
Absence of Technological Restrictions
Attribution
Integrity
No discrimination against persons or groups
Distribution of licence
Package specific licence
Licence must not restrict the distribution of other works

91. The Open Service definition I (definition)
The Open Service Definition provides a definition of 'open' applicable to Software as a Service (SaaS):
"a software application delivery model where a software vendor develops a web-native software application and hosts and operates (either independently or through a third-party) the application for use by its customers over the Internet. Customers do not pay for owning the software itself but rather for using it. They use it through an API accessible over the Web and often written using Web Services or REST."

92. The Open Service definition II (conditions)
An open service is one:
Whose data is open as defined by the open knowledge definition ( with the exception that where the data is personal in nature the data need only be made available to the user (i.e. the owner of that account).
Whose source code is:
Free/Open Source Software (that is available under a license in the OSI or FSF approved list -- see note 3).
Made publicly available.

93. </start>

94. [contact me!]
Prodromos Tsiavos